30 April 2010

The Principal Director as an Author of a Film

One of the earliest provisions in the Copyright Amendment Bill which generated (not always entirely accurate) media interest was a provision which stated that the principal director would become an author of a film.

Thus far, under the Indian Copyright Act, 1957, the producers of both films and sound recordings have been considered to be their authors. The proposed amendment, however, seeks to change this provision and to define, in Section 2(d)(v), the author of a film as its producer and its principal director. Both of these persons are according to a proposed amendment to Section 2(z), to be considered joint authors, unless, of course, with respect to any given film, the same person is both the principal director and the producer.

It has also been proposed to amend Section 17 of the Copyright Act which deals with the ownership of copyrighted works by inserting the following provisions:

(f) in the case of cinematograph film produced on or after the commencement of the Copyright (Amendment) Act, 2010, the producer and principal director shall be treated jointly as the first owner of copyright.

(g) in case of cinematograph film produced before the commencement of the Copyright (Amendment) Act, 2010, the principal director shall enjoy the copyright for a period of ten years after the expiry of the duration of copyright in the cinematograph film subject to the principal director entering into a written agreement with the owner of the copyright in the film during the subsistence of copyright:
Provided that an agreement referred to in this clause shall not be necessary in case where the owner and principal director are the same person;
Provided further that in case of any work incorporated in a cinematograph work nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13;

These proposed changes in the law related to the authorship of films and the ownership of the copyright in films raise some interesting questions, not least among which are: What would happen in cases where the principal director is employed by the producer? Precisely what sort of agreement would fall within the scope of Section 17(g)? Would either the principal director or the producer be able to buy each other out? And finally, and most importantly, who exactly would qualify as a principal director?

Many of these questions are not easily answered by the language of the Bill, and as well intentioned as the Bill may be, this lack of clarity could severely affect its implementation given that the answering of these questions is primarily a question of interpretation and speculation. Also given that the answering of these questions is primarily a question of interpretation and speculation, this post will focus on how the principal director may have come to be considered to be a joint-author at all instead.

In the copyright tradition of Common Law countries, which Indian law has ardently followed, the director, whether he be a principal director or not, has quite simply not traditionally been considered any form of author at all as far as a film is concerned. The copyright tradition of Common Law countries nominally begins with the 1709 Statute of Anne although it can trace its roots further back to the Company of Stationers – a company which was less than acquiescent to the loss of its printing monopoly. The Company “fought back” by persuading parliament pass a copyright law: the Statute of Anne. As a contemporary, Lord Camden, put it: [the Stationers] “…came up to Parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and children to excite compassion, and induce Parliament to grant them a statutory security.”

The Statute of Anne undoubtedly had copyright vest in authors. It was, however, also a copyright which was transferable, and which in fact, “needed” to be transferred to printers since, in a world without the Internet, authors were dependent on printers with money to invest in printing and distributing the books in respect which the copyright subsisted. Without such printing and distribution, it would not be possible to monetise copyright, and without monetisation, copyright would effectively be useless – at least as far as alleviating the impoverishment of the average author was concerned.

And thus, the copyright granted by the Statute of Anne to authors was a copyright which was amazingly easily transferred to “financier”-printers, the precursors of modern publishers.

The “original” copyright statutes, obviously, made no provision for films. As is usually the case, technology outpaced the law, and for a while, films were treated as dramatic works. in fact, modern copyright statutes including the Indian Copyright Act, perhaps due to this, specifically state that a film is not a “dramatic work”.

And in the case of films, copyright law in Common Law countries such as India, did not evolve in a way which even gave the illusion that the person whose intellectual effort was pivotal in creating the film was its author. There was no copyright which vested in persons such as directors whom it may have been possible to consider to have been the authors. Instead, the copyright in a film immediately vested in the financier-producer who was considered to be the author of the film. As such, there was no need for the producer to obtain an assignment from anyone to own the film.

There are, as this shows, two different concepts involved: authorship and ownership. The two are inextricably interlinked since, as a general rule, the author of a work is the owner of the copyright in that work. Making the producer the author of a film, also generally makes him the owner of the copyright in the film. And, in such a situation (which is seen in Common Law countries), all the other persons who bring value to the film and expend intellectual effort towards the creation of the film are placed in a subsidiary position.

It is, however, worth noting that the copyright in a film has not always been directly stated to be owned by the producer even in Common Law countries – there have been times when this has simply been an inescapable conclusion. For example, in Ireland, the Copyright Act of 1963 referred not the producer but to the person by whom the arrangements necessary for the making of the film were undertaken. Further, neither the Irish 1963 Act not the English 1956 Act stated that the producer was the author of a film – it merely accorded each producer copyright ownership.

The development of law on the continent where many countries follow a Civil Law system has been different though, and the tradition there has emphasised the rights of the author. As such, on the continent, the producers’ rights were nowhere near as all-encompassing as they were across the Channel. In fact, on the continent, it was not only the director who was recognised by copyright law but also persons such as the script writer and music composer (who were considered not just in relation to underlying works).

With the push towards harmonisation of the law of countries within the European Union, member states were forced to amend their divergent laws: while the Continent treated the Principal Director of a film as (one of) its author(s), in England, the producer was of paramount importance.

Harmonisation resulted in the Principal Director being brought into the limelight: he was to be considered the author of a film although member states were not restricted from also considering other persons (such as producers) as also being authors of a film. This was not done in one fell swoop. Instead there were a number of Directives which slowly built up to the harmonisation of the law of the member states of the European Union on this subject.

The Directive on Rental and Lending Rights states: “For the purposes of this Directive, the principal director of a cinematographic work shall be its author. Member States may provide for others to be its co-authors.” (Directive 92/100/EEC), and the Directive on Satellite Broadcasting and Cable Retransmission (Directive 93/83/EEC) also made provision for the Director to be considered the author of a film.

These two Directives laid the path for harmonisation to be concluded in a 1993 directive: Article 2 of the Council Directive 93/98/EEC (of 29 October 1993) harmonizing the term of protection of copyright and certain related rights states:

Cinematographic or audiovisual works

The principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors. Member States shall be free to designate other co-authors.

The term of protection of cinematographic or audiovisual works shall expire 70 years after the death of the last of the following persons to survive, whether or not these persons are designated as coauthors: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.

Thus, harmonisation was, for all practical purposes, the consolidation of the Continent’s droit auteur principles and the underlying principles of the copyright legislations of Common Law countries in the European Union.

Other Common Law countries such as Australia which do not belong to the European Union have also picked up on this consolidation and incorporated analogous provisions into their own copyright laws. Perhaps it is this trend which caused it to be proposed that Indian law also incorporate such provisions in its Copyright Act. The provisions themselves, however, reflect a consolidation of two very different philosophies which evolved on opposite sides of the Channel. One can only hope that little is lost in translation while incorporating the idea into Indian law. At the very least, co-authors are, after all, not identical to joint authors.

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